Davey v Oxfordshire CC: The tactics of austerity

Anyone with an interest in independent living must read the (depressing) judgment in Davey v Oxfordshire CC, handed down yesterday. It touches upon such important issues as the domestic legal status of Article 19 CRPD, the meaning(s) of independence, and how effectively independent living is realised by the Care Act 2014.

In (very) brief, Luke Davey is a disabled adult, who had been living in his own home with (more or less) 24 hour support from a team of personal assistants who had supported him for 18 years. They were, to Davey, his ‘community’, his ‘family’ (some of them literally, as he employed his sister in law). On Davey’s own assessment, his independence was central to his wellbeing, and this in turn relied upon his being supported by this team of PAs. His package of care had been partially funded by the Independent Living Fund, which has now closed, and the local authority were responsible for funding all of his care.

The local authority assessed his needs, and concluded that his eligible needs could be met for substantially less. A reduction in his ‘personal budget’ from £1651 to £950. This was based on OCC’s contention that he could meet his assessed eligible needs for less by reducing the number of hours that he was supported, so that he spent 6 hours alone each day, and also by reducing the pay for his PA’s. They assessed Davey as having an ‘eligible need’ to enhance his ‘independence’ by spending more time alone. Davey, meanwhile, experienced anxiety when on his own, and although he was spending 2 hours a week alone did not want to increase this. He agreed that ‘independence’ was essential for him, but for him, independence was about exercising control over his life, not about not being supported. This is a pretty central idea within the disabled people’s movement and the concept of independence under Article 19. He issued JR proceedings.

It’s a long judgment and I don’t have time to recount it all in detail. However, some key elements of it include a discussion of the status of the CRPD and in particular Article 19 for the construction of the Care Act and the wellbeing principle. As readers may know, disability rights campaigners in the UK fought hard for the concept of ‘independent living’ to be included in the Care Act, but this was rejected both by the Law Commission and the Government (neither of whom appeared to fully understand the concept). However, the government then decided in the statutory guidance that actually the ‘wellbeing principle’ which is the overarching principle to be considered when complying with duties under the Care Act, was in fact all about independent living:

1.18 Although not mentioned specifically in the way that wellbeing is defined, the concept of ‘independent living’ is a core part of the wellbeing principle. Section 1 of the Care Act includes matters such as individual’s control of their day-to-day life, suitability of living accommodation, contribution to society – and crucially, requires local authorities to consider each person’s views, wishes, feelings and beliefs.

1.19 The wellbeing principle is intended to cover the key components of independent living, as expressed in the UN Convention on the Rights of People with Disabilities (in particular, Article 19 of the Convention). Supporting people to live as independently as possible, for as long as possible, is a guiding principle of the Care Act. The language used in the Act is intended to be clearer, and focus on the outcomes that truly matter to people, rather than using the relatively abstract term ‘independent living’.

The court was asked to consider whether Article 19 CRPD was an aid to interpretation of the Care Act. The EHRC, intervening, and Davey, contended that it was more than a mere aid to construction, since the Government claimed that the Care Act was in fact all about independent living. OCC contended that it couldn’t be the case that the government intended social workers to have regard to the CRPD when applying the statutory guidance (on which point, it’s worth remembering that actually the Convention that the Government has ratified says that social workers should have been trained on the CRPD, Article 4(1)(i) – how many social workers or other professionals reading this have had training on the CRPD?). Mr Justice Morris noted that Article 19 is only in the guidance not the statute, but agreed that it’s an important aid to interpretation where there is ambiguity because it’s a piece of legislation adopted after the CRPD was ratified and plainly dealing with the subject matter of Article 19. However, he commented that the Convention does not mean that ‘service user can have the final say on his own needs and personal budget or dislodge the principle that, under the Act, the decisions are ultimately to be taken by the local authority’ (para 49). In any case, Mr Justice Morris concluded, ‘In the present case, no specific ambiguity in the Act has been identified, in respect of which Article 19 might serve as an interpretive tool’ (para 48). So the judgment is helpful in the abstract, for confirming that even local authorities may need to have regard to Article 19 CRPD when interpreting their duties under the Care Act, but unfortunately this was not especially helpful to Mr Davey.

For a long time, the disabled people’s movement have contested the idea that professionals know better than disabled people what their needs are and how they should be met (see, for example, Illich in Disabling Professions). The concept of ‘self-assessment’ was central to the concept of personal budgets, which are (at least in name) built into the Care Act. But the Care Act doesn’t grant the power to disabled people to self-assess; the assessment duty – as the judge emphasised – still lies with the local authority, albeit that the wellbeing principle means they must begin ‘with the assumption that the individual is best-placed to judge the individual’s well-being’. Davey contended that his needs for independence and wellbeing required the maintenance of his existing team of PA’s to provide 24 hour care; the council contended his assessed needs for independence included spending time alone. This is Morris J’s view on this divergence of opinion:

…the relevant need to which spending more time alone is addressed is the need to “develop independence and reduce anxiety”. Spending more time alone is the means of achieving that. The clear view of Ms Last and Ms Lovelock is that the Claimant has such a need and this will be developed by spending time without his carers present. Thirdly, it is the social worker’s task to assess needs objectively. Fourthly, prior to the litigation, the Claimant had indicated that he liked to spend a certain amount of time alone and had wanted to develop his independence. Fifthly, in her witness statement, Ms Lovelock accepted that the Claimant does experience anxiety when left alone, but that she assessed that the need, and the way to reduce that anxiety, was to develop greater independence rather than a need never to be left alone. That was a social worker’s assessment which could not be regarded as Wednesbury unreasonable and was a matter for her professional judgment. The social workers had given detailed reasons for their professional judgment. (para 120)

It’s very convenient for a council looking to reduce costs that actually, Mr Davey eligible ‘needs’ are to spend more time alone. This is a good example of precisely the kind of top-down imposition of a professionals’ view of a disabled person’s needs that the movement has been railing against for decades, and it’s depressing that this has been so firmly established in the first real test of how far the Care Act gives effect to self-directed support. The judge confirmed that whilst the wellbeing principle places a strong emphasis on having regard to the person’s own wishes, ‘the Claimant’s wishes are no more than that and are not “needs”; those “wishes”, whilst of significant importance, are not paramount’ (para 121) and ‘“developing independence” was a legitimate “need”’ (para 122).

There’s a lot more to this judgement about the impact of spending time alone on mental health, and the council’s argument that if he wanted to he could spend the money on a live in carer (the judge rejected this, since the council had itself rejected this during assessment – it strikes me that in this submission the council wants it both ways, both that it has the final say through professional judgment, then it wants to rely on the service user’s choice when that judgement leads to awkward consequences of having to assess the impact of that judgement on Davey).

There are a few key points I wanted to bring home in this blog post. Firstly, the judgment actually is quite positive on the status of the CRPD. Yet this doesn’t help Davey because the judge fails to see that there is an ambiguity in the meaning of independence – one which the CRPD does in fact help to address. Independence, for the disabled people’s movement and under the CRPD, is not about spending time without support, it is about having the same choice and control over one’s life and where and how one lives as non-disabled people. This is the ambiguity the CRPD should have helped to resolve, but it wasn’t deployed in this way.

Secondly, the judgement makes clear (as it should have been already when reading the Care Act itself) that for all its talk of putting the person at the centre of the process, the final say on defining needs lies with the council. In a way, of course it does, because public law will always tether resource allocation to the public body, not those relying upon the resources. But the effect of this is to grant tremendous power to the local authority when it comes to the setting of the personal budget, and although it is technically true that this could be spent in other ways (subject, again, to the professional judgement of those working for the council), the reality is that the limited funds mean that alternative options are limited.

Thirdly, the possibility that Davey’s care team will fall apart after 18 years is dismissed as little more than an irrelevance: care here is not constructed as a relationship, a vital relationship, between individuals, but a fungible commodity that can be replaced with no real impact on the service user.

And finally, the case shows that the closure of the ILF is having a real and detrimental impact on disabled people’s lives. We should not underestimate the significance of what it means that a care plan that has been held in place with the same staff for 18 years (that’s HUGE in an industry with such massive staff turnover) is now at risk. It says something huge about the wider political landscape, that for 18 years disabled people like Luke Davey were able to rely upon the ILF to build lives, lives that really did afford independence in the meaning of the CRPD, and now those structures that once seemed so stable, are fragmenting. This judgment is a lesson in the legal and rhetorical tactics that paper over this fragmentation and legitimise it, and a portrait of the shifting tectonic plates of the political landscape as disabled people’s lives fall through the cracks.

6 thoughts on “Davey v Oxfordshire CC: The tactics of austerity”

It is important to note that all parties in this case demonstrated that they were still getting to grips with the new legislation. It is painfully evident that in the recorded assessments that took place in 2015 that the social worker was still applying pre – Care Act practice. Also the lawyers for both sides were probably relying on their own interpretations without a body of knowledge and expertise to refer to.

Arguably, the judge would not have needed to have provided his interpretations of need if the statements made in the needs assessments and the witness statements were more in accordance with the Care Act, i.e. setting out the activities and tasks that Mr Davey has difficulty with as a result of his physical impairment, and then determining the extent to which this has a significant impact on wellbeing.

The Judge’s reasoning sometimes had to follow a tortuous route to resolve the contradictions between the case records and the professional judgments set out in the witness statements. This was principally because what was recorded in the case records in the period after April 2015, when the Care Act was implemented, was not expressed in a needs-led way. For example, in the September 2015 assessment, one of his needs is stated as: “To provide the option for Luke to spend more time alone, safely, in his home, to develop his independence, and reduce anxiety”.

Properly applied the Care Act does provide a fairer context for considering the individual’s needs and preferences. If this had been done in Davey’s case the impact of his needs on his wellbeing, specifically in relation to lack of control over his day-to-day life, lack of personal dignity and participation in recreation could have been set out, and the proposed reduction to his personal budget evaluated against what could reasonably be argued as necessary to meet his needs and improve his wellbeing.

Let’s hope that next individual who takes a case gets lawyers who have a better understanding about how the framework of the law is supposed to be applied in practice.

I am hoping that these judgements in this case will not set too much of a precedent, and that subsequent judicial reviews will recognise that the judge was hampered by not being presented with a case that was assessed in accordance with the Care Act.

Are ‘needs’ under the Care Act supposed to be analogous to ‘needs’ in an EHCP: “The aspects of a person’s disability that make learning (dailiy life) more difficult for them than for most pupils (people)”? Or is there a different definition for the Care Act?

In EHCP terms, “developing more independence”, or (more honestly) “reducing dependence on carers” would be an ‘outcome’, not a ‘need’, and would probably involve substantial (and expensive) ‘provision’ of technological workarounds to enable Mr. Davey to do for himself the things that he would otherwise have to rely on staff to do for him.

Dear friends. Thank you for your comments and understanding of Luke’s situation. We are doing our best to stay positive and also looking at providing his needs in different ways. We are considering having a live-in carer for Luke, which financially would be within the budget, However, this would mean making his existing carers, some of whom he has had for 20 years, redundant. We do not have the money to pay this. Also, Luke would miss the variety of carers and miss hearing all about their lives and families.
I do some shifts myself, but I have cancer in both lungs and am receiving frequent treatment, which leaves me tired. I am 76. It’s all about the money. There is no compassion for people like us.
Jasmine Davey

Luke Davey’s case and the administrative imperative?
1. Mr. Feldon’s book will provide an insight for those of us who struggle to understand the mindset of social workers when they undertake assessments of the elderly, the disabled and the plain unlucky in this period of sustained austerity.
I would add that the courts place considerable value on the contribution of social workers. In R v Tower Hamlets LBC ex p Wahid Hale LJ (now Baroness Hale) commented:
need is a relative concept, which trained and experienced social workers are much better equipped to assess than are the lawyers and the courts provided they act rationally
(my emboldening)
2. A report of Luke Davey’s case on the local government lawyer website also highlighted the role of social workers and the approach of the courts to their decision making:
The courts should be wary of overzealous textual analysis of social care needs assessments carried out by social workers for their employers with the risk of taking them away from front line duties.”

It is not for the Court to be prescriptive as to the degree of detail in an assessment or a care plan – these are matters for the local authority, and if necessary, for its own complaints procedure or resort to the Secretary of State. The court is the last resort where there is illegality.

3. Mr. Stephen Knafler QC notes in his book, “Adult Social Care Law,” at point 8.4, the chapter on community care assessments:

The courts tend to:
…
• defer to professional evaluation and judgement, by adopting a relatively generous reading of assessment material

Taking points 2 and 3 together unless the social worker acts with Wednesbury unreasonableness way (i.e. irrationally, note Baroness Hale’s comment above) the individual or their advisers will have difficulty in establishing “a clear breach of the legal parameters” and having the assessment quashed by a court. The judge did not find any Wednesbury unreasonabless in the social workers decision making in Luke Davey’s case.

4. However, Mr. Feldon suggests that one of difficulties with Luke Davey’s case was “because what was recorded in the case records in the period after April 2015, when the Care Act was implemented, was not expressed in a needs-led way.” Is that a little surprising? Surely the social workers would have had training on the Care Act prior to its enactment to have, “…a better understanding of the framework of the law…”

Besides that the NHS and Community Care Act 1990 altered the approach of social workers, it posed a challenge to alter their attitudes. Needs led assessment was to be indispensable to high quality care; they no longer assessed an individual’s needs to see if they met the local eligibility criteria but to identify the individual’s presenting needs i.e. all their needs. The Care Act did not introduce needs led assessments it extended them as the mantra, “choice, independence and control” rang in our ears.

5. So what has actually gone wrong (if anything) for social workers and their clients in the arena needs led assessments? Has there always been a three card trick, now you see a needs led assessment, now you don’t dependent upon an authority’s financial position and, of course, the individuals access to legal advice?

Professor Clements and the late Pauline Thompson’s 4th edition, “Community Care and the Law” has two pages (at 46 and 47) which give an insight into the problem social workers face. I have always tended to gloss over them whilst searching for legal “bricks” to hurl at social workers following the latest problem I had e.g. individuals on the wrong side of the digital divide were to have an E-card instead of an old style direct payment, council documents suggesting percentage reductions to be made in care packages etc. Readers are advised to buy the new edition and, in the interim, note the authors’ comments:

…The development of “managerialism” within social services has unquestionably undermined the ability of social workers to conduct “needs led” assessments. Increasingly they are budget led exercises whose primary purpose is to conform to internal administrative imperatives, rather than the empowerment of service users and their carer.

At the heart of this dilemma is the issue of resources, and the extent to which the courts are prepared to defer to the problems of government (central and local) in ensuring the state’s finite resources are applied equitably…

So if these learned individuals saw the problem faced by social workers between needs led assessments and “managerialism” in 2007 has the problem disappeared or been magnified?

7. In a period of sustained austerity is it tenable that the outcome for Luke Davey would have been improved if the “time alone” need had been set out as Mr. Feldon suggests on the appropriate needs led basis?

From the outset it is at least arguable there was evidence of an “administrative imperative,” see paragraph 15 of the judgement. Part of the council’s evidence was that the funds from the closed ILF fund (which had been used to assist disabled people to lead independent lives) were not provided to meet assessed eligible needs, “they were a top up fund.” Accordingly they informed service users that some users might experience a reduction in funding. So would a hard pressed social worker acting under an administrative imperative involve themselves in the intricate analysis provided by Mr. Feldon to convert “wishes” to which the council merely had to “have regard” into an assessed eligible need? Readers can answer that in the light of their own experience. I would immediately add that the judge saw no Wednesbury unreasonableness in the social worker’s judgements.

Leaving the administrative imperative apart what are we left with? A desired outcome is distinct from a need albeit that they are connected, see paragraphs 6.9 and 6.110 of the guidance. In this regard I am grateful to the speakers at the Deaf and Disabled Peoples’ Organisations Legal Network (Jamie Burton, Mitchell Wolff and Karly Francis) who shone a revealing light on Luke Davey’s case at the meeting on18 May 2017. However, as matters stand Professor Clements’ comments in his Care Act overview paper are prescient:

Although wellbeing is expressed as relating to such a wide range of considerations, there is a risk that it may prove to be of little practical application.

About The Small Places

The Small Places blog is written by Lucy Series, you can read more about her and the blog on the 'About' page.

Blogs, including this blog, should never be relied upon as a source of legal advice. They may be out of date, inapplicable to your circumstances, or just plain wrong. If you need to find a solicitor, you could try the Law Society's find a solicitor webpage. The Mental Health Lawyers Association also list solicitors who do Court of Protection work. Some members of the Bar Pro Bono Unit do Court of Protection work.

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